Fixing the kangaroo courts

By Rich Lowry
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Sep 4, 2018 at 3:00 PM

A judicial process that doesn't allow the accused to cross-examine his accuser or reliably see the evidence against him is a civil libertarian's nightmare. It traduces every principle of fairness and is blatantly un-American.

Yet Education Secretary Betsy DeVos is about to get savaged for replacing just such a process with something more in keeping with our long-standing legal norms.

The Education Department is preparing new rules that would roll back the monstrously unfair Obama-era requirements for how colleges handle sexual assault and harassment allegations. It will be a significant advance for due process, which is almost as out of style on campus as free speech.

In one of its least defensible actions, the Obama administration used its Office for Civil Rights to impose its preferred procedures for handling sexual assault cases on all the universities in the country that receive federal funds. It did it via a 19-page "Dear Colleague" letter, in the name of Title IX, the provision in federal law prohibiting sexual discrimination in education.

The process was terrible. It blew right by the Administrative Procedure Act, which requires public notice and comment before such rules go into effect. And the substance was worse. If the letter reads as if it was written by inflamed activists who had no interest in balanced proceedings, that's because it was.

It required colleges to adopt a "preponderance of evidence" standard rather than a "clear and convincing" standard.

It more or less forbid colleges from allowing the cross-examination of accusers.

It adopted a remarkably broad definition of sexual harassment to include "unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature."

The administration also encouraged the use of a "single investigator-adjudicator system," i.e., one person as investigator, judge and jury.

The Obama rules are medieval in the sense that they ignore central developments in Anglo-American justice that arose hundreds of years ago.

In their important book "The Campus Rape Frenzy," KC Johnson and Stuart Taylor Jr. describe how the rules often played out: "Start with an alcohol-soaked set of facts that no state's criminal law would consider sexual assault. Add an incomplete 'investigation,' unfair procedures, and a disciplinary panel uninterested in evidence of innocence. Stir in a de facto presumption of guilt based on misguided Obama administration dictates, ideological zeal, and fear of bad publicity."

The result has, inevitably, been jaw-dropping miscarriages of justice. Everyone should want perpetrators of sexual assault to be punished -- and in the criminal-justice system, not just by colleges -- but elementary protections for the accused can't be discarded in the process.

One reason the Obama rules were so lopsided is that they were crafted in an atmosphere of moral panic. It was assumed that there was a spiraling epidemic of sexual assault on campus. Taylor and Johnson note, to the contrary, that sexual assaults of female college students dropped by more than half between 1997 and 2013, and that young women in college are less likely to be assaulted than those who are not in college.

The Obama rules have been receiving a battering in the courts, where due process is still taken seriously.

A U.S. District Court judge wrote in a 2016 ruling against Brandeis University: "If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision. Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome, and a fair and neutral fact-finder, not predisposed to reach a particular conclusion."

This is the animating spirit behind the DeVos changes. They are still being formulated, but a New York Times report suggests that they will correct the worst excesses of the Obama rules and interject fairness into proceedings that were, shamefully, designed to lack it.